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Civil Petition No. 433 of 1981, decided on 11th August, 1981.

(On appeal from the judgment dated 4‑2‑81 of the Lahore High Court in Writ Petition No. 964/R of 1978).

---S. 2(12), second proviso‑Divisibility of evacuee house‑Order of Settlement Commissioner desiring Deputy Settlement Commissioner to inspect spot and ascertain whether whole building one residential unit or consisted of a residential portion and nine shops‑Held, an order directing Deputy Settlement Commissioner to decide case in terms of second proviso to S. 2(12) of Act‑Once such power exercised and property, held, to be a residential building and nine shops petitioners in occupation of only residential portion and one shop could not, held further, get more than such part of property.

‑ S. 2(12)‑Contention that in complying with remand order of Settlement Commissioner, Deputy Settlement Commissioner should have directed his mind to nature of property as it existed on date of order of remand and not to its value as it existed when property inspected 11 years later‑Settlement Commissioner in his order of remand having noted property as consisting of a house and nine shops, he even on such date found property being not exclusively a residential unit but a house with nine shops and Deputy Settlement Commis sioner on inspection of spot having concluded whole property being not one unit, contention, held, without substance.

Muhammad Zainul Abidin, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 11th August, 1981.

‑This case relates to the transfer of a composite property bearing No. SW‑102‑R‑34, Rajgarh Road Lahore, which consisted of nine rooms and a residential portion. The residential portion was in possession of Mst. Sardar Begum deceased and out of the commercial portion one shop was in possession of her son while the remaining shops were in possession of the contesting respondents and others. The Deputy Settlement Commissioner, relying on the report of the Settlement Inspector that the property was situated in a residential area transferred the entire building in favour of Mst. Sardar Begum and her son Muhammad Akhtar laved vide order dated 24‑1‑1960 presumably treating the whole of it as a house. Three occupants of the shops, namely, Ghulam Mustafa, Sardar Ali and Gulzar Muhammad, who had filed CS forms felt dissatisfied with the order and filed an appeal before the Additional Settlement Commissioner. By order dated 10‑11‑1980, the Additional Settlement Commissioner set aside the order observing that the Deputy Settlement Commissioner should not have based his decision on the report of the Settlement Inspector and should have himself inspected the spot. He, therefore, remanded the case with the following observations :‑

.. I would like that the D. S. C. himself should go to the spot and see if the house along with 9 shops can be transferred in favour of the respondents (Mst. Sardar Begum and her son Muhammad Javed Akhtar). After visiting the spot if he finds that this residential house along with shops should be treated as one unit then the decision of the D. S. C. dated 24‑1‑1960 shall stand otherwise he should pass fresh order in this case "

Unfortunately, the case remained pending for nearly 11 years and during this period according to the learned counsel for the petitioner many shops sprang up in the area with the result that the locality became a sort of Bazar and, therefore, when the Deputy Settlement Commissioner inspected the spot in 1971 he thought that the property was situated in a commercial area and, consequently, directed vide his order dated 25‑7‑1971 that the residential portion be transferred to Mst. Sardar Begum, the occupant of it, and one of the shops, which was in possession of Muhammad Akhtar Javed to be transferred to him, the remaining shops were ordered to be disposed of either to their occupants or through auction.

Mst. Sardar Begum and Muhammad Javed Akhtar feeling aggrieved by the above order challenged it by a revision but the same was dismissed by the Settlement Commissioner vide his order dated 30‑5‑1978. Mst. Sardar Begum having died, the writ petition by Muhammad Akhtar Javed and the other heirs of Mst. Sardar Begum was also dismissed by the High Court by the order dated 4‑2‑1981. The learned Judge in the High Court held that the order of the Deputy Settlement Commissioner dated 10‑11‑1980 which Was upheld on revision was passed in terms of the second proviso to section 2(12) of the Displaced Persons Act. The property was found to be consisting of a residential portion and nine shops; the residential portion was transferred to Mst. Sardar Begum and one shop in possession of Muhammad Akhtar Javed transferred in his favour and that in these circumstances the petitioners had no locus standi to question the transfer of the shops in possession of the other persons, which had been declared as separate independent shops. This petition for leave to appeal is directed against this order passed by the learned Judge of the High Court.

Mr. Syed Muhammad Zainul Abidin, learned counsel for the petitioners, in support of this petition, raised two points. Firstly, that as only three occupants of the shops had filed appeals against the earlier order of the learned Deputy Settlement Commissioner dated 24‑1‑1980 no other person could be introduced in the case and, therefore, except for the said three occupants of three shops no one also could be transferred the remaining part of the building and secondly, the learned Deputy Settlement Commis sioner on remand should have directed his mind to the nature of the property as it existed on 20‑12‑1958 and passed orders keeping the said situation in view, rather than the situation existing in 1971.

We find no force in these contentions. We agree with the learn Judge in the High Court that the order of the Additional Settlement Commissioner dated 10‑11‑60 desiring the Deputy Settlement Commissioner to inspect the spot and ascertain whether the whole of the building was on residential unit or consisted of a residential portion and nine shops was an order directing' the Deputy Settlement Commissioner to decide the c in terms of the second proviso to section 2(12) of the Act. Once that power was exercised and the property held to be a residential building and nine shops then naturally Mst. Sardar Begum and her son, who were in occupation of only the residential portion and one shop could not get more than the aforesaid part of the property.

As for the question that the Deputy Settlement Commissioner should have seen as to what the nature of the property was with reference to its use, in view of the order. dated 10‑11‑1960 passed by the Deputy Settlement. Commissioner, we may observe even the Additional Settlement Commis sioner in his order dated 10‑11‑1960 had observed that the property consisted of a house and nine shops. He, therefore, had even on that date found that the property was not exclusively a residential unit but a house with nine shops and issued directions to the Deputy Settlement Commissioner to visit the spot to determine whether the residential house along with nine shops could be treated as one unit. As already pointed out the Deputy Settlement Commissioner on inspection of the spot came to the conclusion that the whole property could not be treated as one unit.

The overall result is that there is no force in this petition, which is, accordingly, dismissed.

Petition dismissed.

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